In redistricting appeal, larger issues loom

Plenty of questions have swirled around the State Supreme Court’s handling of the redistricting appeal.

Will conservative justices fall in line with their legislative brethren and find a way to uphold a plan that resulted in districts depicted by many as the epitome of a racial gerrymander?

Many believe that’s a foregone conclusion and that the Republican State Leadership Committee will get what it paid for when it dumped millions into Justice Paul Newby’s reelection campaign, betting that he’d ensure a win by voting to uphold the Republican plan.

Should Newby refrain from participating in the case because of that money?

And what will follow? Will the groups challenging the 2011 plan get a ruling that leads to review by the U.S. Supreme Court? Under what plan will voting continue while the courts review the challenged one?

Here the court appeared poised to act quickly on the appeal when it scheduled argument just two short weeks after briefing had completed.

But yesterday the members of the court threw that supposition into doubt.

With stacks of court briefs piled in front of them and redistricting maps resting on easels near counsel table, the state’s seven justices listened politely for 90 minutes as attorneys presented their arguments, but barely engaged with them by asking questions.

In a case of no small moment, with voting rights at stake and millions in taxpayer dollars already spent on attorneys defending the state, the justices – other than Mark Martin, who asked two concerning issues not necessarily at the heart of the appeal – had no questions.

That inaction had many leaving the court yesterday scratching their heads, wondering what to expect next from this court.

Will we even get a substantive decision from the court on the redistricting challenge before the November 2014 elections?

Or has election reticence set in?

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The state’s latest go-round of redistricting litigation began in November 2011, when the state NAACP and other groups and individuals filed complaints in Superior Court contending that the newly-enacted plan violated the state and U.S. constitutions.

Chief among their claims was the contention that lawmakers created majority-minority districts (where the black voting age population is greater than 50 percent) wherever possible and packed African-American voters into those districts when federal law didn’t require that.

After an expedited schedule for the exchange of documents and deposition of witnesses – a process that itself made a quick trip to State Supreme Court, along with a request that Justice Paul Newby refrain from considering issues brought to the high court in the case because of the redistricting money that funded his re-election campaign – the three-judge panel assigned to the case began to sort out the questions presented.

In February 2013, the panel heard two days of arguments to determine whether it could rule on the merits without a trial. And during two days the following June, the court considered evidenced on the two questions it found warranted a trial – whether the General Assembly’s drawing of certain districts was reasonable in order to avoid liability under the federal Voting Rights Act, and what was state lawmakers’ predominant reason for drawing certain districts as they did (was it race, or something else).

A month later, and just days after the U.S. Supreme Court gutted the preclearance requirement of the Voting Rights Act, the panel ruled in favor of the state defendants on all claims.

***

Oral argument before the state’s highest court is typically when attorneys have the opportunity to engage with the justices and respond to questions they may have after reviewing the briefs submitted to the court.

But that interaction didn’t occur yesterday.

Without questions from the justices, attorneys for both the challengers to the plan and the state used their time to reiterate arguments already made in their court filings.

Anita Earls from the Southern Coalition for Social Justice, representing the NAACP and others, argued that the redistricting maps were racial gerrymanders that violated the state and U.S. constitutions.

The state improperly invoked avoidance of liability under the Voting Rights Act as the justification for its maps, she added, turning that Act on its head by drawing districts that resulted in racial segregation and limited participation by African-American voters.

Post-election analysis presented at trial bore that out, showing that the 2011 redistricting plan “placed one in four North Carolina voters into ‘split precincts,’ . . . led to widespread confusion about who would be on the voter’s ballot on Election Day and result[ed] in the actual disenfranchisement of thousands of voters,” the Coalition said in a later press release.

An esteemed group of constitutional law professors from across the country – including four from state law schools – agree with that analysis and have submitted a friend-of-the-court brief to the justices explaining why.

Edwin Speas from Poyner Spruill, another attorney for the challengers, argued that lawmakers divided far too many counties when drawing their plans, in violation of the state constitution’s whole county provision.

But Alex Peters from the Attorney General’s office countered by claiming that the state’s counting of clusters – drawing as many two-county clusters as possible, then three-county clusters, and so on – was consistent with the whole county provision.

And Thom Farr from Ogletree Deakins, representing the individual lawmakers, suggested that if lawmakers were drawing districts to comply with the whole county provision, then perhaps race was not their predominant motivation.

In that case, he added, challenges under the Voting Rights Act and the U.S. Constitution simply can’t survive.

***

As has happened in previous redistricting battles, a ruling by the state justices on the merits of the current plan will likely not be the last word.

“My clients are certainly committed to pursuing their case as far as possible,” Anita Earls said. “These are fundamental principles they believe in, and they think that these districts are just not good for the people of North Carolina. And the Supreme Court has said again and again that racial balancing for its own sake is not constitutional. If we are not successful here, I think there’s a very good chance that on the U.S. Supreme Court there will be enough votes to take this case.”

But when will a ruling come from this court?

Some were encouraged when the justices heard argument just two weeks after briefing had been completed on December 23, taking that quick action as a sign that they would move quickly on the merits in order to settle the law before the November 2014 elections.

Attorneys for the challengers have already asked the court to stay election deadlines in February and beyond while the court reviews the merits of the redistricting plan, and a ruling on that request could come any time.

Or not. The justices’ lack of engagement at yesterday’s argument is fueling speculation that something unexpected is coming.

Has the prospect of months of tense campaigning for the four court slots up in November given the justices pre-election jitters?

Is a decision after the polls close in the works? If so, why the rush to hear argument?

Chatter had already begun about the impact the coming elections is having on the court’s handling of controversial issues.

In November, just weeks after hearing arguments in the state’s latest pre-K funding battle, the court refrained from ruling on the merits, finding instead that subsequent legislative changes to the pre-K program mooted the issues raised in the appeal.

Could there be a similar way out in this case?

The three-judge panel rendered much of its decision without a trial, leaving open the question of whether that was a reversible mistake requiring a return to the panel for a trial on additional issues.

And a trial is what the state defendants say they are entitled to – at least on the question of whether race was the legislature’s predominant motive when drawing the plans — their attorney Thom Farr suggested to the justices yesterday, should the court reverse the panel. (Counsel for the plan challengers disagree).

Time will tell whether that trial, rather than an opinion on the merits of the state’s 2011 redistricting plan, comes next – and what that portends for the next nine months at the state’s highest court.

About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years.